In Blow for Immunity, Lawmaker Arrested

Demolishing the constitutional protection forbidding the arrest of lawmakers without National Assembly consent, police apprehended opposition lawmaker Um Sam An early Monday morning in Siem Reap City over his advocacy against Vietnamese border intrusions.

One of the architects of a CNRP campaign last year to embarrass the government for allowing Vietnamese civilians and soldiers to arbitrarily claim sovereign Cambodian territory, Mr. Sam An was arrested hours after returning from exile in the U.S. and Europe.

CNRP lawmaker Um Sam An is escorted from the Interior Ministry in Phnom Penh on Monday after being arrested in Siem Reap City shortly after midnight. (Thmey Thmey)
CNRP lawmaker Um Sam An is escorted from the Interior Ministry in Phnom Penh on Monday after being arrested in Siem Reap City shortly after midnight. (Thmey Thmey)

Under a very broad interpretation of a clause in the Constitution permitting lawmakers’ arrests when they are caught in the act of a crime—referred to by the Latin phrase “in flagrante delicto”—he was seized over Facebook posts written last year, said Justice Ministry spokesman Chin Malin.

“We arrested him for discrimination, using fake maps and incitement causing insecurity in society,” Mr. Malin said by telephone on Monday. “Police see that these are crimes, so they arrested him for questioning.”

“They will send this case to court, and the prosecutor will charge him according to these crimes,” Mr. Malin said, adding that Mr. Sam An was being detained at the Interior Ministry. “He will be sent to court tomorrow.”

On Monday afternoon, however, Mr. Sam An was also transferred briefly from the ministry to the municipal court for questioning, and used the opportunity to call out to reporters.

“This is an unjust case. I have been accused of incitement and causing turmoil in society,” he said.

Mr. Malin, the spokesman, said Mr. Sam An’s provocative and public Facebook posts from the U.S. last year, which accused the CPP of complicity in Vietnamese incursions into Cambodia and were widely covered by the media, rendered his case “in flagrante delicto.”

“I give, as an example, that if Mr. Um Sam An killed someone and escaped but then returned, the police could arrest him because he committed an obvious crime, and everyone knows he did it before,” Mr. Malin said.

“What he did in 2015 is considered as flagrante delicto. Even if it happened in the past, it’s still considered flagrante delicto from a legal and technical perspective.”

It is not clear which of Mr. Sam An’s many Facebook posts violated the law, but the lawmaker last year continued to accuse the CPP of using fake border maps long after August 21, when Prime Minister Hun Sen warned that such claims would lead to arrest.

The lawmaker also often posted what he said were the correct French colonial maps of Cambodia’s eastern border with Vietnam, which the Constitution dictates are the only ones that can be used for border demarcation.

“I say the government’s maps are illegal because those maps differ from the maps stipulated in Article 2 of the Constitution,” Mr. Sam An wrote in September, calling Mr. Hun Sen’s maps of the Cambodian-Vietnamese border an “inheritance left by the Yuon in the 1980s.”

“Yuon” is a word for the Vietnamese considered pejorative by many but often used by the opposition, which has long sought to take advantage of the fact that Vietnam installed Mr. Hun Sen and his government in power during its 1979 to 1989 military occupation of Cambodia.

Monday’s arrest, which was carried out months after Mr. Sam An’s alleged crime—and while he was withdrawing money from an ATM, according to deputy Siem Reap provincial police chief Huot Sothy—now raises questions about the future of the legal immunity granted to lawmakers.

The privilege is provided to all elected lawmakers by Article 80 of the Constitution, which reads: “The accusation, arrest, or detention of an assembly member shall be made only with the permission of the National Assembly…except in case of flagrante delicto.”

A two-thirds majority vote in the Assembly is required to strip a lawmaker of his or her immunity—a procedure that the CPP has taken full advantage of in past mandates to jail opposition lawmakers. Yet the CPP has not enjoyed such a supermajority since 2013’s election.

Koul Panha, executive director of the Committee for Free and Fair Elections, said the broad interpretation of “in flagrante delicto” used to arrest Mr. Sam An over six-month-old online posts rendered the protections provided by Article 80 essentially meaningless.

“The Constitution has become nothing now, in terms of its legal protections for members of parliament—nothing. The government can now proceed with arresting members of parliament as it wants,” Mr. Panha said.

“The National Assembly must immediately take action and ask the government why they have violated the Constitution. They can propose a motion to ask the government to explain why they did this,” he said.

However, Leng Peng Long, the spokesman for the National Assembly and its longtime secretary-general, said he approved of Mr. Sam An’s arrest on the grounds of the apparently flagrant nature of his online posts.

“I have not yet received any reports from the authorities, but I think that the authorities probably have enough evidence to arrest Mr. Um Sam An,” Mr. Peng Long said. “I think that the arrest did not break the law, because Mr. Sam An committed an obvious crime.”

It’s not the first time a parliamentarian has been arrested despite his immunity. On Mr. Hun Sen’s orders in August, opposition Senator Hong Sok Hour was jailed for forgery and incitement over a fake border treaty with Vietnam he used in a lecture posted on Facebook.

While the CPP held the necessary two-thirds majority in the Senate to strip Mr. Sok Hour of his immunity, the ruling party’s senators met and decided not to strip him, citing the then-deleted video as a case of “in flagrante delicto” that would allow his imprisonment anyway.

On Monday, the similarity between the two cases was not lost on Interior Ministry spokesman Khieu Sopheak, who drew upon the precedent of Mr. Sok Hour’s arrest in defense of Mr. Sam An’s arrest.

“The case of Um Sam An [is] not different from the case of Hong Sok Hour, because he criticized the government about selling land to Vietnam and he also criticized the government for using fake maps,” he said.

While officials have taken a broad interpretation of “in flagrante delicto,” Mr. Hun Sen has offered a limited view of parliamentary immunity itself, warning that seven other CNRP lawmakers charged with “leading an insurrection” before accepting their seats in August 2014 could be jailed.

“The seven lawmakers will still be jailed because you received immunity after you were charged,” Mr. Hun Sen said in a January 2015 speech. “Please study the law. Your side knows the law and our side knows the law.”

Opposition leader Sam Rainsy—who is himself now living in France in self-imposed exile to avoid an ever-growing list of charges and sentences—said on Monday Mr. Sam An’s arrest was a bad sign with 2017 commune elections and 2018 national election approaching.

“This arrest bodes ill for the climate surrounding the forthcoming elections,” Mr. Rainsy wrote in an email from Paris. “It must ring the alarm bell in the ears of all those, including the international community, who look forwards to acceptable elections in 2017 and 2018.”

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